200 Mich. 250 | Mich. | 1918
(after stating the facts). Counsel for defendant in this court assert that they rely upon errors as follows:
1. In the introduction of evidence.
2. In overruling defendant’s motion for a directed verdict in its favor.
3. In refusing to give to the jury proper instructions requested by the defendant.
It is urged by counsel for defendant that inasmuch as plaintiff’s declaration alleged that:
“Said railroad then and there ran so near to the said property so owned by the plaintiff that it was possible for sparks from said locomotive to be blown and carried over to and upon the said property,”
the plaintiff should not be permitted to offer any proof because:
“The proof he intends to make, according to his opening statement, cannot come under that pleading, because, under his opening statement, he says he proposes to show, not that the property was so near, but that it was so far away that it was impossible to*257 throw sparks unless the engine was in bad condition, and that is exactly contrary to what he had pleaded; and he must amend his declaration before he can make his proofs conform to his opening statement; if he asks for that we shall ask for a continuance of this case.”
In this connection it is argued that testimony as to the distance from the track to the straw stack and all testimony tending to support the inference of improper equipment and operation from the circumstance of the great distance it was assumed the spark was thrown was inadmissible:
“On the ground that the declaration laid stress upon the nearness of the point of ignition, but made no claim as to excessive distance.”
We are unable to grasp the force of this argument. The declaration averred that the property destroyed was within the possible radius of flying sparks; that the fire was- caused by sparks from defendant’s engine and that said engine was improperly equipped and improperly managed. We think the declaration stated a cause of action and that the proof offered thereunder should have occasioned no surprise to defendant.
It is next argued that error was committed in permitting the witnesses, Spokes and Loveland, to testify that an engine properly equipped could not throw sparks capable of setting a fire a distance of 453 feet. The objection to the testimony of these witnesses is based upon the fact that neither had operated a locomotive engine for many years. The evidence of these witnesses was admissible under the authority of Union Ice Co. v. Railway Co., 178 Mich. 346; its weight was for the jury.
Error is assigned upon the admission of the two witnesses, Rogers, to the effect that in November or December while building a new barn they had noticed live sparks fall upon the roof of said barn a distance
"Where the particular engine is known and designated, it is not competent to show generally that the defendant’s engines have caused fire at other times and places.”
This testimony was not offered for the purpose of showing that defendant’s engines generally caused fires at other times and places, but was offered for the purpose of showing that it was physically possible for sparks to be carried that distance through the air. For this purpose it would seem the testimony was admissible. Hoskinson v. Railroad Co., 66 Vt. 618; Matthews v. Railway Co., 142 Mo. 645; Dunning v. Railroad Co., 91 Me. 87; Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454; Black v. Railroad Co., 122 Iowa, 32; Cincinnati, etc., R. Co. v. Winkle, 148 Ky. 726.
Error is assigned upon the action of the court in refusing to direct a verdict for the defendant upon the ground that the testimony showed without contradiction that engine No. 102 on the day of the. fire was in proper condition and there was no evidence tending to show that it was improperly operated. In Potter v. Railway Co., 157 Mich. 216, we held that where the defendant offered testimony tending to show that the engine was in good order and properly managed which was not directly controverted, where expert witnesses gave evidence tending to show that an engine in good order and properly managed would not throw live sparks across the distance claimed, a question of fact was raised for the determination of the jury.
The evidence contained in this record certainly warrants the conclusion that defendant’s passing engine caused the conflagration. While the evidence that the
The judgment is affirmed.